Collins v. Li

SHARER, J. These cross appeals, from the Circuit Court for Montgomery County, arise out of several claims and counter claims, resulting from a tragic residential fire that took the lives of two children and catastrophically injured a third child. The procedural issue presented is one of first impression in Maryland. The Parties The original plaintiffs were Stephon Collins, Sr., individually and as Personal Representative of Stephon Collins, Jr.; and Daniel and Patricia Juster, individually and as Personal Representatives of Samuel Juster. The defendants were Dr. Gui- ²⁵⁴ Fu and Chung Ling Li; Pittway Corp.; Michael Chapman; First Alert, Inc., Sunbeam Corp.; BRK Brands, Inc.; Honeywell International, Inc.; Keith and Catherine Chapman; The Ryland Group, Inc.; and Summit Electric Company.

A later complaint was filed by Michael Chapman and Carolyn Hill, individually and as Parents and Legal Guardians of Kyle, Keith, and Brandon Chapman, against the same defendants and also David E. Dieffenbach, t/a Dedhieo Home Improvements, and his employee, Kevin T. Hightower. Creating this appeal was the circuit court’s consent on November 15, 2002, to the dismissal, without prejudice, of all claims between appellants Michael Chapman and Carolyn Hill, as Parents and Legal Guardians of Kyle, Keith, and Brandon Chapman, and appellees Dr. Gui-Fu Li and Chung Ling Li. 1 By earlier orders, the circuit court had granted appel-lee/cross-appellant Ryland’s motion to dismiss. Subsequently, the court granted Summit Electric’s motion to dismiss, or in the alternative, for summary judgment. 2 Motions for reconsideration were denied. Thereafter, appellants moved to certify the orders of dismissal as a final judgment under Rule 2 — 602(b)(1), to permit an immediate appeal, effectively for the purpose of litigating Ryland’s liability. 3 The manufacturer appellants joined the motion.

The circuit court, properly in our view, denied the ²⁵⁵ motion. Appellees Dieffenbach’s and Hightower’s Motions for Summary Judgment against appellants were granted. Appel-lee Ryland’s Motion to Dismiss was also granted, along with appellee Summit Electric’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. Appellants’ Motion for Reconsideration as to Ryland and Summit Electric was denied. 4 Appellants raise four questions for our review: I. Whether the court erred as a matter of law by granting appellee Ryland Group’s Motion to Dismiss under Maryland Rule 2-322.

II

Whether the court erred as a matter of law by granting Summit Electric Co.’s Motion to Dismiss under Maryland Rule 2-322.

III

Whether the Court, to the extent it considered the motions of Ryland and Summit under summary judgment standards, erred by not continuing the hearing on appellees’ Ryland Group and Summit Electric Co.’s motions until discovery was completed under the provisions of Maryland Rule 2 — 501(d).

IV

Whether the court erred as a matter of law by granting appellees Dieffenbach and Hightower’s Motions for Summary Judgment, because the issue of causation, including whether or not an intervening act is “foreseeable,” is a question of fact for the jury to resolve. Cross-appellant Ryland presented the following question, which we have rephrased: Whether the circuit court erred in consenting to the dismissal without prejudice in order to obtain a final judgment, in the face of the court’s earlier denial of certification under Maryland Rule 2-602(b). ²⁵⁶ We answer “yes” to Ryland’s question and hold that the circuit court abused its discretion pursuant to Md. Rule 2-506(b) by dismissing the several unadjudicated claims without prejudice. Having resolved this appeal on a jurisdictional basis, we need not reach the questions presented by appellants. We shall affirm the court’s denial of certification under Maryland Rule 2-602(b), vacate the order permitting the voluntary dismissal without prejudice, and remand to the circuit court for appropriate further proceedings.

FACTUAL and PROCEDURAL HISTORY Only a brief summary of the facts is required to place the issues in perspective. Twelve-year old Samuel Juster and 13-year old Stephon Collins, Jr., sons of appellants Juster and Collins, and 12-year old Kyle Chapman, the son of appellants Michael Chapman and Carolyn Hill, were overnight guests in the Chapman home on June 13, 1998. The Chapmans resided in a single family home at 23 Grantchester Place (“the residence”) in Gaithers-burg, Maryland, which they had rented since 1991 from the owners of the property, Dr. and Mrs. Gui-Fu Li. The Chap-mans’ sons’ quarters consisted of two windowless enclosed rooms in the basement.

The basement also included an additional room in which Mr. Chapman had his office. On the evening of June 13, 1998, thunderstorms caused an electrical power outage. At the time, the children were playing Monopoly in the basement rooms. Because of the lack of electricity, the room was illuminated by approximately six candles.

After the boys went to bed, one candle was left lighted in the basement rec room. Sometime after 5:00 a.m. on June 14, 1998, that single candle caused a fire. Samuel Juster and Stephon Collins died as a result of the fire, and Kyle Chapman suffered severe burns resulting in the amputation of both of his legs. Although the basement was equipped with a smoke detector, it did not sound because it was hardwired into the home’s electrical system, and was not functioning due to the power ²⁵⁷ outage.

The smoke detector did not have a battery-powered backup, even though such equipment was readily available in the marketplace, both at the time of the fire and at the time the residence was constructed. According to plaintiffs/appellants, the events that gave rise to their claims originated with the construction of the home. They allege negligence by Ryland and Summit for not having installed smoke detectors with alternate battery power, despite the availability of such devices when the home was built in 1989. Subsequent events, they allege, created liability on the part of other defendants.

In early 1994, a water pipe burst in the residence, causing extensive damage in the basement. On February 2, 1994, Dieffenbach, trading as Dedhico Home Improvement, was retained by the Lis and Mr. Chapman to repair the water damage. Included in Dieffenbach’s work was the rewiring and cleaning of twenty electrical outlets, which was actually performed by his employee, Hightower. Dieffenbach did not obtain the required permits from the City of Gaithersburg.

As we have noted, appellants fault Ryland, the builder, and Summit, the electrical subcontractor, for failing to install dual-power smoke detectors (with a safety battery backup) when the home was built in 1989, and for failing to provide the homeowner with the users’ manual for the AC-powered smoke detectors. The claims against Dieffenbach and Hightower were based upon their having renovated the basement without permits in 1994, failing to replace the AC-powered smoke detectors with dual-powered smoke detectors, and failing to warn the owners and occupants that the use of the enclosed rooms in the basement as sleeping areas was contrary to local code restrictions. Dieffenbach’s and Hightower’s motions for summary judgment were granted. Ryland’s motion to dismiss was also granted, as was Summit’s motion to dismiss.

Appellants’ motion for reconsideration of the Ryland and Summit rulings was denied, and this timely appeal ensued. ²⁵⁸ STANDARD of REVIEW The principles of appellate review require that, “absent a clear abuse of discretion, a chancellor’s decision that is grounded in law and based upon facts that are not clearly erroneous will not be disturbed.” Bagley v. Bagley, 98 Md. App. 18, 31-32 , 632 A.2d 229 (1993) (citing Domingues v. Johnson, 323 Md. 486 , 492 n. 2, 593 A.2d 1133 (1991) (citations omitted)), cert. denied, 334 Md. 18 , 637 A.2d 1191 . (1994). A trial judge possesses the discretion to determine the proper disposition of the case only where “the findings are supported by evidence and therefore not clearly erroneous.” Bagley, supra, 98 Md.App. at 32 , 632 A.2d 229 (citations omitted). DISCUSSION I. Whether the circuit court erred in consenting to the dismissal without prejudice in order to obtain final judgment, in the face of the court’s earlier denial of certiñcation under Maryland Rule 2-602(b).

Ryland argues that the circuit court abused its discretion under Md. Rule 2-506(b) 5 by permitting appellants to fabri ²⁵⁹ cate a final judgment by dismissing their unadjudicated claims without prejudice in order to prosecute an immediate appeal. That, they posit, had the effect of enabling appellants to obtain this Court’s advice as to Ryland’s liability. Ryland further argues that, because the circuit court earlier declined to certify the judgments as final under Rule 2-602(b), the voluntary dismissal device was a transparent effort to circumvent the earlier ruling. They argue that appellants clearly intend to reassert their claims following a merits ruling by this Court, and point to the tolling agreement between all of the parties who had earlier dismissed with prejudice, and other defendants.

Appellants counter that this argument is without merit because Ryland has no standing to object to the Rule 2-506(b) dismissals and no right to a cross appeal; 6 appellants did not engage in any collusive or fraudulent behavior; the posture of the case changed significantly between the time of the trial court’s original denial of the Rule 2-602(b) motion, thus creating a final appealable judgment; and finally, that appellee’s citation of Federal case law is inapposite to the facts of the case. Maryland Rule 2-602 provides: (a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment;. (2) does not terminate the action as to any of the claims or any of the parties; and. ²⁶⁰ (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties.

(b) When allowed. If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment: (1) as to one or more but fewer than all of the claims or parties; or. (2) pursuant to Rule 2-501(e)(3), for some but less than all of the amount requested in a claim seeking money relief only. The purpose of the rule is to prevent the expense and delay that result from piecemeal appeals.

Judge Moylan, writing for this Court, detailed the importance of certifying an order as a final judgment: Primary considerations are the strong policy against piecemeal [sic] appeals and the interests of judicial economy. Both of these factors weigh heavily against certification, and in assessing them, it is important to consider whether the same issues will have to be considered by the appellate court on successive appeals. Whether the determination of the remaining claims may render moot the need for the review being sought should also be considered, as should the question of whether entertaining the appeal upon the merits would require us to determine questions that are still before the trial court. The trial judge should then weigh the exigencies of the case against those factors and consider the possible harsh effects of delaying an appeal until the entire ease has been completed.

The most obvious among these is a harsh economic effect, but there may be others depending on the circumstances of each case. Allstate Ins. Co. v. Angeletti, 71 Md.App. 210, 219 , 524 A.2d 798 (1987) (citing Canterbury Riding Condo. v. Chesapeake Investors, Inc., 66 Md.App. 635 , 505 A.2d 858 (1986)). Md. Rule 2-602(b) is a “limited and tightly circumscribed exception” to the final judgment rule.

Tharp v. Disabled Am. Veterans Dep’t of Md., Inc., 121 Md.App. 548, 557 , 710 A.2d ²⁶¹ 378 (1998) (citations omitted). We have recently reiterated Maryland’s appellate policy disfavoring piecemeal appeals. See Murphy v. Steele Software Sys.

Corp., 144 Md.App. 384 , 798 A.2d 1149 (2002). Federal Authority Ryland urges us to follow the federal cases of Ryan v. Occidental Petroleum Corp., 577 F.2d 298 (5th Cir.1978), and its progeny; appellants urge us to follow a line of cases contrary to Ryan , and argue that we should not be persuaded by “discredited, misleading and outdated case law.” We therefore turn to Ryan and similar subsequent cases. The federal counterpart, and the rule from which Maryland Rule 2-506 is derived, is fed. r. civ. p. 42. In Milburn, v. Milburn, 142 Md.App. 518 , 790 A.2d 744 (2002), we noted that interpretations of Federal Rule 42 can be used to glean the purpose of Md. Rule 2-506: Appellant urges us to look to case law interpreting the Federal Rules of Civil Procedure (Fed.R.Civ.P.) in our analysis of Rule 2-506 because, as noted in [State of New Jersey ex rel.

Lennon v. Strazzella, 331 Md. 270 , 627 A.2d 1055 (1993)], this rule emanated from Fed.R.Civ.P. 41. Lennon, 331 Md. at 279 , 627 A.2d 1055 . We agree that the interpretations of Fed.R.Civ.P. 41 provide us with insight into the purpose of the Maryland rule concerning voluntary dismissal. Federal R. Civ.

P. 41(a) is clear; construing Fed.R.Civ.P. 41(a), the Court of Appeals for the Fourth Circuit has stated that, “[a]s the [r]ule’s text makes plain, the universe of plaintiff-initiated, voluntary dismissals is broken into two categories.” Marex Titanic, Inc. v. Wrecked & Abandoned, Vessel, 2 F.3d 544, 546 (4th Cir.1993). One category involves the situations in which the plaintiff may dismiss of his or her own volition, without any limitations by the trial court. Piedmont, Interstate Fair Ass’n v. Bean, 209 F.2d 942, 945 (4th Cir.1954). The purpose behind this provision is to allow a person to withdraw his or her claim when no one will be prejudiced by such action.

Id. Once the case has been prepared for trial, ²⁶² however, and one of the parties will be prejudiced by a dismissal, Rule 41(b) requires leave of court. Id. There is a third scenario: when the parties act in concert.

As stated in Fed.R.Civ.P. 41(a)(2), in this situation, no leave of court is required. We apply this reasoning to our analysis of Rule 2-506 below. Like Fed.R.Civ.P. 41, Rule 2-506 is clear and unambiguous; voluntary dismissal may be obtained in three situations. A party may file a notice prior to the filing of an answer or motion for summary judgment by the adverse party or a stipulation signed by all parties; or he or she may obtain leave of court.

The rule clearly mandates that there will be situations when a trial court will be required to exercise its discretion in granting a voluntary dismissal; however, there will also be situations when the parties, as opposed to the trial court, may, without leave of court, dismiss the cause of action. Id. at 532-83, 790 A.2d 744 . Ryan v. Occidental Petroleum Corp. Ryan sought recovery against Occidental for actual and exemplary damages concerning his discharge from an Occidental subsidiary. Ryan, supra, 577 F.2d at 300 .

The district court granted Occidental’s motion to dismiss several paragraphs of the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Id. Ryan contested the ruling and asked for certification under Fed.R.Civ.P. 54(b). 7 Id. The district court granted Ryan’s request, but then vacated the certification and substituted an order granting Ryan’s motion for voluntary dismissal of the single substantive allegation remaining in his complaint.

Id. The substitution occurred after the court heard argument on the certification as a final order issue. In its eventual dismissal, the court noted Ryan’s dismissal was without prejudice to his right to file again in the same or any other court. Id.

Ryan then appealed the district ²⁶³ court’s two original orders dismissing and striking certain paragraphs and language in the complaint. Id. The Fifth Circuit Court of Appeals reiterated its jurisdictional requirement that a judgment be final in order to be reviewed, and stressed that appellate courts must exercise caution when departing from this requirement. Ryan, supra, 577 F.2d at 301 .

The court stated, absent a certification under Rule 54(b) and entry of judgment, “we may not entertain appeals from partial dispositions or orders unless they fall within limited exceptions to the usual finality rule.” 8 Id. Ryan’s Progeny The Ryan court found that Ryan’s case did not fall under any of the enumerated exceptions 9 and held that there was no ²⁶⁴ final judgment as “the torso of [Ryan’s] complaint — including the identification of the parties and the jurisdictional allegations” remained before the district court. Id. The district court’s denial of certification did not permit it to reach the same result (a “final” appealable decision) through the consent to a voluntary dismissal.

Id. at 302-803 ; see Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147 -48 (10th Cir.1992). The Ryan court found the facts to be analogous to other scenarios in which it found circumvention of the requirements of Rule 54(b), including a district court’s attempt to dismiss a main claim after displacing a counterclaim to another pending lawsuit, and a situation in which the parties and the court attempt to reach an agreement for the purpose of rendering an order appealable. Ryan, supra, 577 F.2d at 302-303 (citations omitted). Since the Ryan decision in 1978, other circuits have considered the issue.

In Great Rivers Coop. of Southeastern Iowa v. Farmland Indus., Inc., 198 F.3d 685 (8th Cir.1999), a class action suit, the Eighth Circuit declined to follow Ryan “[i]n this unique procedural posture.... ” The plaintiffs in that case appealed from the district court’s decision granting partial summary judgment, rejecting their securities, unjust enrichment, and part of their breach of fiduciary duty claims. Great Rivers, supra, 198 F.3d at 687 . When the summary judgment orders were initially entered, the district court certified the order as final pursuant to Rule 54(b). The Court of Appeals rejected the district court’s Rule 54(b) certification and dismissed the appeals for lack of final judgment.

Id. at 688 . The court held: ²⁶⁵ Thus, there can be little doubt that basing this appeal on a disingenuous voluntary dismissal was contrary to the strong policy that parties must “raise all claims of error in a single appeal following final judgment on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 , 101 S.Ct. 669 , 66 L.Ed.2d 571 (1981). A plaintiff whose strongest claims have been dismissed in an interlocutory order may expedite appeal by dismissing its remaining claims with prejudice. But a dismissal without prejudice, coupled with the intent to refile the voluntarily dismissed claims after an appeal of the interlocutory order, is a clear evasion of the judicial and statutory limits on appellate jurisdiction.

Id. at 688 (emphasis in original). In declining to dismiss under Ryan , the court noted its concern “that these decisions ignore the well-established test for determining whether a district court judgment that seemingly ends the case is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 .” Id. at 689. The court noted that in order for a judgment or decision to be final, there must be “ ‘some clear and unequivocal manifestation by the trial court of its belief that the decision made, so far as [the court] is concerned, is the end of the case.’ ” Id. quoting Goodwin v. United States, 67 F.3d 149, 151 (8th Cir.1995) (quoting Fiataruolo v. United States, 8 F.3d 930, 937 (2d Cir.1993)). The court found that the final judgment of the district court dismissing the class’s complaint in its entirety, constituted a final decision.

Id. Ultimately, under an abuse of discretion standard, 10 the court held: ²⁶⁶ In most cases ... a district court does abuse its discretion when it frustrates the limitations on federal appellate jurisdiction by entering a Rule 41(a)(2) order dismissing remaining claims without prejudice for the purpose of facilitating the immediate appeal of an earlier interlocutory order. Certainly in this case, after we dismissed the initial appeals of the district court’s interlocutory summary judgment orders, granting the class’s Rule 41(a)(2) motion was a clear abuse of discretion. Id. at 689-90. 11 In Smith v. Lincoln Meadows Homeowners Ass’n, Inc., 267 Neb. 849 , 678 N.W.2d 726 (2004), Smith, injured when a swing broke, brought a premises liability action against a homeowner’s association.

Smith sued the association for damages including various injuries, disability, lost wages, and “most pertinent” that her fall triggered the onset of multiple sclerosis (MS). Id. at 728. The homeowner’s association filed “a pretrial motion for partial summary judgment on the allegation of MS, in conjunction with a motion in limine to exclude the plaintiffs expert testimony supporting that allegation.” Id. The court found plaintiff’s expert testimony to be inadmissible, granted the motion in limine, and entered partial summary judgment with respect to MS damages, as Smith was left without expert testimony to support that claim.

Id. Smith then filed a motion to dismiss her cause of action, without ²⁶⁷ prejudice, and asked the court for a final order so that she could appeal the grant of partial summary judgment. The court granted the motion to dismiss and signed a prepared order stating: “ ‘the Plaintiff shall have the right if she so elects to timely appeal this Court’s now final ruling on the issue of multiple sclerosis[.]’ ” Id. at 729. Before reaching the merits of her appeal, the appellate court, raised the jurisdictional issue of whether Smith’s voluntary dismissal without prejudice, under those circumstances, effectively created finality and conferred appellate jurisdiction.

The court concluded that it did not, vacated the lower court’s order of dismissal, and dismissed Smith’s appeal. Id. Smith is factually